On November 1, 2006, collateral counsel filed Demands for Additional
Public Records pursuant to Fla. R. Crim. P. 3.852(i)(hereinafter "lethal injection demands) from the Medical Examiner - 8th District, the Office of the Attorney General, Florida Department of Corrections and the Warden of Florida State Prison (PC-R2. 787-792). These "i" demands related to Mr. Diaz’s pending Rule 3.851 Motion challenging the constitutionality of Florida’s use of lethal injection. Subsequently, on November 15, 2006, written objections were filed by the Department of Corrections and by the Attorney General’s Office, who filed its own objection, as well as objections on behalf of the medical examiner and the Governor’s Office (PC-R.2 814-826).
Governor Bush signed Mr. Diaz’s death warrant on November 14, 2006. On November 15, 2006, this Court ordered that all matters pending in the trial court be acted on and orders disposing of those matters be entered by November 22, 2006. On November 16, 2006, the circuit court ordered an emergency hearing for November 17, 2006, "to argue all pending motions, including the Amended Motion for Postconviction Relief and the Public Records Requests." The court further ordered that "any emergency motions shall be filed and faxed to the court by 4:00 p.m. on November 16, 2006." (Order Setting Emergency Hearing, November 16, 2006).
A. 3.852(i) Demands Filed November 1, 2006 (Lethal injection demands)
The lower court’s November 21, 2006 Order Denying Request for
Additional Public Records addresses only the demands for public records filed before Mr. Diaz’s death warrant was signed (PC-R. 1528-1529). These demands involved records regarding Florida’s use of lethal injection. The lower court found that all of Mr. Diaz’s demands in this regard "are overbroad and are not designed to lead to relevant and discoverable evidence." (PC-R2. 1529).
The State argued that the 3.852(i) demands were untimely and overbroad and unduly burdensome (PC-R2. 1146). Collateral Counsel objected to the Assistant Attorney General speaking on behalf of the agencies, who had counsel and were not present at the hearing. (Id.) The assistant attorney general represented to the court that she had been requested by the agencies to represent them (PC-R2. 1447).
At the outset, it is important to note that this Court’s opinions in Hill v. State, 921 So. 2d 579 (Fla. 2006), and Rutherford v. State, 926 So. 2d 1100 (Fla. 2006), regarding public records requests do not control this case. Both Mr. Hill and Mr. Rutherford were under warrant at the time they made their public records requests relating to lethal injection, so their requests were governed by Fla. R. Crim. P. 3.852(h)(3), which does not allow requests to agencies from which the inmate has not previously requested records. Mr. Diaz was not under warrant at the time of making the requests, and therefore his records requests fall under Fla. R. Crim. P. 3.852(i).
At the hearing, collateral counsel argued that the 3.852(i) demands stated specifically what counsel was seeking and were not unduly burdensome (PC-R2. 1461-1462, 1448-1452). The records requested, including the types and doses of drugs used, the order in which they are injected, and the method used to inject the drugs, would either be admissible evidence or were reasonably calculated to lead to admissible evidence in the form of expert opinions as to whether lethal injection, as conducted under Florida’s protocol, causes unnecessary pain. (Id.)
As argued supra, new evidence suggests that lethal injection may cause extremely painful and torturous death such as would violate the Eighth Amendment. Since this research was developed in other jurisdictions, Mr. Diaz’s expert witnesses would need to review records related to Florida’s lethal injection protocol in order to apply the new research to Florida’s procedures. The requested records are necessary for Mr. Diaz’s experts to determine whether Florida’s lethal injection procedures pose a risk of causing an unnecessarily painful and torturous death.
In order to fairly form an opinion on the lethal injection protocol, the experts would have to know the qualifications of the personnel involved in the execution. Lethal injection requires the mixing of drugs, insertion of IV catheters, administration of drugs, and other tasks requiring medical training and skills. The use of unqualified and untrained personnel would make it more likely that errors
will occur and that the designated drugs will not function as intended under the protocol, causing unnecessary suffering.
The experts would also need to review reports of observations of previous executions by lethal injection, including autopsies and toxicology reports and reports of complications, in order to form an opinion on the likelihood that condemned inmates in Florida have suffered painful and torturous deaths by lethal injection. It would also be necessary for the experts to review the documents related to the adoption of lethal injection as a means of execution in Florida in order to assess, among other issues, the criteria used for choosing the lethal injection protocols, whether the protocols were evaluated scientifically before being adopted, whether alternative protocols were considered, and whether there was an awareness of the risk of inflicting pain. Only after reviewing these records would Mr. Diaz’s expert witnesses be able to testify fully and fairly.
Additionally, the lower court made factual findings which are unsupported by the record. For example, the court found that Mr. Diaz should have requested records from the Medical Examiner’s Office "prior to filing the 2006 motion and not at the Huff hearing" (PC-R2. 1528). The records sought pertained only to the post-mortem examinations of Hill, Rutherford and Rolling. With the exception of Hill, these records would not have existed prior to the filing of Mr. Diaz’s motion to vacate on September 25, 2006. The court made additional bizarre findings that
2 While Mr. Diaz has received a copy of DOC’s new protocol, the new protocol generates many additional questions and concerns. It further indicates that additional documentation is being kept pertaining to executions. Specifically, DOC indicates that it creates and maintains checklists after each execution. Counsel is entitled to copies of the checklists for the three most recent executions.
have no basis in the record, but appear to be based on the Court’s personal opinion.